An agressive attack on the Tenth Amendment was posted recently at RedState entitled The Tenth Amendmenters and it states;

“There is much talk here on these pages and on other conservative sites that the Tenth Amendment is some broad grant of state’s rights. Many argue that because of the 10th Amendment, the federal government cannot wade into areas that traditionally have been the province of state governments. However, to assert that argument is to read way too much into the Amendment as stated.”

And further the Federalists bowed to the demands of the Anti-Federalists;

“As such, they viewed a Bill of Rights as being superfluous within the constitutional framework. Still, to abate these unwarranted fears (in their estimation) they gave into the Anti-Federalists and agreed that the first Congress would take up a Bill of Rights. In fact, the first eight amendments are essentially lifted from state constitutions in existence at the time.

 Almost as afterthoughts, the Ninth and Tenth Amendments were added.” — The Tenth Amendmenters

Afterthoughts? For an “afterthought” to become an amendment this is what is required;

“The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states…” Article V, U.S. Constitution

They were anything but afterthoughts, and the writer confirms that they were not in his next statement, which shows he believes in a malleable Constitution.

“…the powers of the federal government enumerated in Article I, Section 8 are intentionally vague. With respect to the Commerce Clause, there are several vague terms– “to regulate, “commerce,” and “among the several states” are inherently open to a wide range of interpretation, especially as society and technology changes. If there is any doubt that these are vague phrases, look at over 200 years of litigation regarding them, and then come back and talk to me. Clearly, people like Madison and Hamilton knew how to write more defined and specific statements, but they declined to do so. Why did they write the enumerated powers so vaguely? Because Article I, Section 8 powers are pliable principles over time, not a rigid code.”(Emphasis added) — The Tenth Amendmenters

Even though the Federalists assured the Anti-Federalists that the Constitution’s enumerated powers limited the new government, there was extensive evidence to the contrary under the Articles of Confederation.  There were numerous claims by those who like big government of “inherent” powers in addition to those that were enumerated, and this amendment was to help forestall the future usurpation of states’ powers and the people’s rights.

Why did they write the enumerated powers so vaguely? — The Tenth Amendmenters

Words are very powerful, and if their meaning does not allow you to do what you want, then change their meaning and make it “vague” so you can get what you want. But, since the Constitution was written and ratified by men who were lawyers, or who had studied law, it must be viewed in an 18th century legal framework, taking into consideration how the words were used and understood in the 1780s.  But many  unhappy with the Constitutions restrictions have pulled and twisted its words and meanings as if they were taffy, so they could have a living or “malleable” Constitution, one that could be used to justify the usurpation of other powers.  However, there are several methods to understand what our Constitution said and meant. One method is “Designatio unius est exclusion alterius” – the naming of one thing implies the exclusion of another. If a document lists specific items, in this case enumerated powers,  similar items not listed are excluded. Basically, if the power is not listed then you do not have it.

Again, “Designatio unius est exclusion alterius” – the naming of one thing implies the exclusion of another not only applies to enumerated powers, but applies equally to rights. The 9th and 10th Amendments were not mere “afterthoughts.” They were included to make it understood that the rights listed in the Bill of Rights were not inclusive of all of the rights that were reserved to the states or to the people.

The 9th Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

If still unsure of a law’s Constitutionality we can try another method:  the intent of the makers and ratifiers of the Constitution. We can look to the notes of the Constitutional Convention and the state ratifying conventions to see if they intended that the new government was to have more broadly based powers – “elastic ones,” or whether it was confined to certain enumerated powers. All notes and writings point to the latter construction of the new government with the extreme exception of Alexander Hamilton.  Hamilton pushed for more of an American Monarchy, and when he failed to achieve his goal, he went back home and only returned when the Convention was almost over. Later, he helped write The Federalist Papers wherein he touted the limited nature of the new Constitution and helped to get it ratified.  Only later did he work to increase the government’s power.

“…people like Madison and Hamilton knew how to write more defined and specific statements, but they declined to do so.” — The Tenth Amendmenters

I think they were quite capable of making their intentions clear:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
— James Madison, Federal No. 45, January 26, 1788

“No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”
— Alexander Hamilton, Federalist No. 78

“…the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.” — Alexander Hamilton, Federalist #28

Again, the writer states that the Constitution a legal document written by lawyers has “a vaguely written clause”.

“The one enumerated right which most conservatives overlook comes at the end of Article I Section 8- the Necessary and Proper Clause. This final enumerated right stands like a huge exclamation mark catch all. Again, it is a vaguely written clause that potentially gives Congress broad authority.” — The Tenth Amendmenters

“The language granting authority to ‘do all other things necessary and proper’ … is recognition that the agent has implied or incidental powers…

… during the Founding Era (as today), the doctrine of incidental powers gave an agent some discretion in how he carried out his duties.”

However, this discretion was limited in three important ways. First, the agent could act only for the purpose of carrying out the principal powers… (Emphasis added)

Second … actions undertaken under the doctrine of incidental powers had to be of the sort either reasonably necessary to the enumerated powers or a customary way of executing them…

Third, incidental powers never included authority as important as the listed powers.”
— Robert G. Natelson, The Original Constitution (What It Actually Said and Meant)

They could not have foreseen an Industrial Revolution, union organizing, worker exploitation, a national energy policy, farm subsidies, and the like- things we today take for granted. The beauty of the Constitution is that they created a document that was malleable enough to account for more recent events. One can argue that the original meaning of the Commerce Clause, for example, is rather straightforward and should follow through from the 18th Century understanding. In that case, if commerce is strictly intrastate, then the federal government has no right “regulating” it. But, what commerce today is truly intrastate? (Emphasis added) — The Tenth Amendmenters

Let me emphasize again – the Constitution is a legal document written by attorneys and others who studied law; they had just fought and won their freedom from a tyrannical government that was usurping the powers of the colonial governments. Does the author really expect that they would create a plan for a new government “that was malleable” and could “on a whim” decide what their powers would be?

The real solution is not invoking the Tenth Amendment when the opportunity presents itself, but being totally committed to small and limited government and electing people who share that commitment. Put another way, simply because the federal government has the authority is not necessarily a justification to exercise that authority. — The Tenth Amendmenters

This section makes no sense; first we must elect small government individuals who will not want to use the authority that they have usurped through this “malleable” Constitution.  But what we have found is that who we elect really makes no difference. We see evidence of this in recent elections of “small government” candidates. Once in office, they become enamored with power and further expand the government. It is not the powers that were delegated that are the problem; it is the powers usurped by all branches of the federal government that are prohibited by the Ninth and Tenth Amendment that are the problem.

The founders and ratifiers of the new Constitution wished to put a further exclamation point on the restrictive nature of the enumerated powers of the Constitution and said so in the Preamble of the Bill of Rights.

“The Conventions of a number of the States having, at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution…” (Emphasis added)

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The Tenth Amendment cannot stop the usurpation of power. That responsibility was left to the representatives of the respective branches of the federal government fulfilling their roles as fiduciary agents for the people and the states. Failing that, it remains for the States, as partners in this Constitutional contract, to rein in their agent, our employee, the federal government.

“In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” — Thomas Jefferson, Kentucky Resolves 1798


One final note;  the author of The Tenth Amendmenters made several references to what some Founding Fathers were supposed to have said or believed, but failed to supply quotes and references to support his assertions, a very ineffective way to further the argument. His complete misunderstanding of the original definition of words used and the legal interpretations, practices, and rules of construction has led him to misunderstand the Constitution and its limits on the federal government. These defects can be corrected through referencing an excellent book, Robert G. Natelson, The Original Constitution (What It Actually Said and Meant).

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